The MTP Act Amendment Bill 2020 was passed by the Lower House of Parliament (Lok Sabha) on 17th March 2020 and by the Upper House (Rajya Sabha) on 16th March 2021.

In 1971 when the Medical Termination of Pregnancy Act was first passed by the Indian Parliament, it was one of only a handful such laws to be passed in the world and it was hailed as a very progressive law, which it was, given the era.

Although it was not a rights- based legal provision, it did give women in India the access to a safe abortion under a set of defined circumstances. These circumstances included defining who could perform a termination and when and where, all of which are important for ensuring safety and quality of care.

The range of reasons for which the pregnancy could be terminated up to 20 weeks gestation was also very liberal and included danger to the life of the woman as well as to her physical and mental health. (The rationale to terminate a pregnancy caused by rape was that continuing it would affect her mental health.) The reasons for termination also included fetal malformation and failure of contraception used by a married woman and her husband. The context in which this law was drafted was a world where there was enormous pressure on India to ‘control’ its population and emerge from poverty. At the same time there was an unacceptably large number of maternal deaths taking place across the country. Hence the Shantilal Shah Committee was set up to look into this. The members of the Committee travelled across the country and interacted with women in the community and their findings revealed that septic abortion caused a huge proportion of these deaths. Thus they recommended that medical termination of pregnancy be allowed under certain conditions in order to prevent these needless deaths.

Given the already existing focus on reducing the number of births and the free (and in later years compulsory and coercive) contraceptive programmes, it was not difficult to justify the need for access to safe and legal abortions in order to reduce these deaths while also reducing the number of unwanted births.

Many countries allow termination of pregnancy for saving the life of the woman, mental and physical health and fetal anomalies. However, the clause that allows termination of a pregnancy caused by failure of contraception makes the MTP Act even more liberal than others. (Of course, this clause was specifically worded for use in the case of a married woman and her husband.)

However, the Indian Penal Code ( which was the British Penal Code of 1860) still criminalizes miscarriage/ abortion in sections 312-316. Although much has changed since then and other movements have successfully challenged IPC sections such as Section 377, the safe abortion rights movement in the country has not yet challenged this.

As a result, the focus of the MTP Act is primarily on protecting the provider from criminal charges under the IPC and it is not a women-centric act or a rights based one. It gives the provider the complete and final power to decide which of the five prescribed reasons any particular case represents and although the clauses do cover a range of situations it also gives her or him the power to reject anyone.

Despite the Bombay High Court and Supreme Court making statements and judgements in the past few years clarifying that women must have the right to control their bodies and decide what to do with them, including continuation or termination of a pregnancy the Indian Penal Code clauses have not been challenged or changed. This makes it difficult to do away with the MTP Act in the current situation.

In a country where unsafe abortion deaths still contribute to 9-13% of the maternal deaths, it is worth considering what the law needs to do in order to truly address the needs of women who are uneducated, still being forced into early and child marriages, receive no sexuality education and when martial rape is not criminalized.

The new avatar of the MTP Act falls very short of addressing the empowerment of women and to respect protect and fulfil their rights. It continues to see women as victims or protectorates of a benevolent paternalism. It is also able-ist without apology. The power of the decision-making not only continues to remain with the doctor but in fact a whole new group of doctors in the forms of Medical Boards come into play).

The woman is to be ‘saved’ from an unwanted pregnancy only if it will result in a ‘disabled’ fetus or if she was a victim of rape. In a country where marital rape is not criminalized and it is believed that more than two-thirds of married women in India, between the ages of 15 to 49, have been beaten, raped, or forced to provide sex this protection in the MTP Act is almost a mockery.
It is unfortunate that the Amendments which took over 20 years to become law are still inadequate, not far- reaching or visionary enough and bring no relief to those who really need it because it still does not hold the public sector accountable for providing a full range of sensitive and quality services nor does it shift the power balance in the decision making from the provider to the pregnant person.
While it is important of course to disseminate the information about the small progresses made at this time, we also need to regroup and work towards the changes that are still needed.

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We are celebrating 50 years of MTP Act with ISAY and MASUM this entire year, so follow us for more updates and unheard voices speaking up for their #righttoabortion – We are excited to invite you for our upcoming webinar celebrating the 50 years of Medical Termination of Pregnancy Act in India, in collaboration with Mahila Survangeen Utkarsh Mandal(MASUM) and India Safe Abortion Youth Advocates (ISAY) on 9th April (Friday), 2021 from 2pm to 3pm IST. To register visit this link.